The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), remanded back the matter in the case of Differential service tax demand on “Erection Service”, “Pipeline Service” and “Supply of Manpower Service”.
The appellant in the present matter is Metro Engineers. The present appeal is directed against impugned Order-In-Original passed by Commissioner Central Excise and Service Tax. The impugned order has confirmed service tax of Rs. 75,21,003/- as differential service tax on “Erection Service”, “Pipeline Service” and “Supply of Manpower Service” and also demanded interest and penalty under section 78 of the Finance Act, 1994.
Hasit Dave, Counsel appeared on behalf of the appellant submitted that an amount of Rs. 39,46,637/- as an excess payment done by them in this case for which they are now eligible for refund from the entire service tax demand amount of Rs. 75,21,300/- already paid by them. Accordingly, their liability to pay differential amount is only Rs. 35,74,366/- against the total demand which already stands paid by them before issuance of show cause notice.
The Counsel further submitted that the Joint Commissioner of Customs, Central Excise and Service tax has already issued show cause notice on identical facts and subject upon the appellant for demand on export service therefore it was already within the knowledge of the department. Hence, the show cause notice could not allege suppression etc.
A Two-Member Bench of the Tribunal comprising Ramesh Nair, Judicial Member and CL Mahar, Technical Member observed that “We have carefully considered the submission made by both sides and perused the records. We find that the appellant had admitted the demand of Rs. 35,74,366/-, is sustainable on merit. As regard the appellant’s submission that the amount of Rs. 39, 46,367/- is not payable for various reasons has not been considered by the lower authority.”
“Therefore, this matter needs to be remanded back to the Adjudicating Authority for re-quantification of the demand after considering the submission of the appellant. The Adjudicating Authority also needs to look into the aspect of larger period of demand and imposition of penalty under Section 78 of Finance Act, 1994” the Tribunal concluded.
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